Hearing cases and disclosing when spouse is CPCS Appeals Unit staff attorney

December 8, 2011

CJE Opinion No. 2011-5     

You are a Justice-Designate to the Appeals Court.  Your spouse is a staff attorney in the Appeals Unit of the Committee for Public Counsel Services ("CPCS").  You have stated that as a result, you will recuse yourself not only from your spouse's cases, but from all cases handled by the Appeals Unit of CPCS. You have also stated that you will not have any input in any case argued by the attorneys in the Appeals Unit of CPCS.

You have further indicated that you will recuse yourself from second panel, or off-panel,  consideration of Appeals Unit cases.  (Second panel, or off-panel, consideration is an Appeals Court procedure by which, after a first draft of an opinion is approved by the hearing panel of three judges, or a majority opinion with a dissent or concurring opinion is written, the draft is "circulated to all the other justices for their comments.  Further revisions may be made, based upon these off-panel suggestions.  In addition, circulating a proposed opinion to off-panel judges is the court's primary method of minimizing inconsistent reasoning or direct legal conflict between two opinions on the same subject issued by two different panels of the court, a perceived danger in any court with a large docket of cases and which does not sit en banc." J.E. Miles, "The Appeals Court--How It Functions," Mass. L. Rev. (Fall 1982), p. 116.)   Additionally, in the exceptional situation such as found in Green v. Commonwealth, 13 Mass. App. Ct. 524 (1982), where the panel is enlarged to include all justices who sat upon previous cases that the court determined to be in tacit conflict with a question before it, you would likewise need to recuse yourself if the Appeals Unit of CPCS was handling the case, even though you had sat on one of the previous panels.

Finally, you have stated that you will hear cases from the private counsel division of CPCS.  The private counsel division handles post conviction appeals that the public counsel division (that is, the Appeals Unit) cannot handle due to a conflict of interest.  See G.L. c. 211D, sec. 14 ("The public counsel division, except in cases of conflict of interest, shall represent indigent defendants in all appeals and related post-conviction remedies. In the case of a conflict of interest, the assignment shall be to the private counsel division.")

You have posed the following questions:

  1. Are you obligated to inform members of the Appeals Court who will hear cases argued by your spouse of your relationship?
  2. Are you obligated to inform opposing counsel in the cases in which your spouse appears before the Appeals Court of your relationship?

By your stated plan of recusal, you will clearly be complying with Canon 3E (1)(h)(ii), which requires that a "judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: . . .  the judge's spouse or domestic partner . . .is acting as a lawyer in the proceeding." You are also properly taking the additional step of disqualifying yourself when any case represented by the Appeals Unit of CPCS comes before the Appeals Court . See, e.g., CJE Opinion 96-3 (judge must disqualify himself or herself from hearing cases of a district attorney's office where the judge's spouse is first assistant district attorney).

The Code of Judicial Conduct specifically requires disclosure of a spousal or other disqualifying relationship only when invoking the so-called remittal procedure of Canon 3F, by which a "judge disqualified by the terms of Section 3E may, instead of withdrawing from the proceeding, disclose on the record the basis of the judge's disqualification and ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification."  Otherwise, as stated in the Commentary to Canon 3E, "If the judge believes there is no real basis for disqualification, a judge may, but is not required to, disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification" (emphasis added).  The Committee concludes that given your decision to recuse yourself from all Appeals Unit matters, you are under no obligation to disclose your spousal relationship to your colleagues (and indeed it would be prudent not to remind them of your relationship) or to counsel in cases in which your spouse will be appearing.